I served on California’s Fair Employment and Housing Council (previously the Fair Employment and Housing Commission) for more than seven years (appointed first by Gov. Schwarzenegger and later by Gov. Brown). The Council is charged with drafting implementing and clarifying regulations for all of California’s civil rights laws, including employment laws. During my tenure on the Council, I took part in numerous regulation initiatives and in several cases served as a primary author for these regulations. Such was the case with regulations promulgated by the Council related to gender identity and gender expression.
California has one of the most comprehensive sets of employer guidance on issues related to gender identity in the workplace. The first-of-their-kind California gender identity regulations went into effect in July of 2017 and provided clear guidelines for employers on how to comply with the law and, more importantly, how to provide a safe and fair workplace for all Californians.
While it’s rare for regulatory language to provide practical, step-by-step directions on how to make the workplace healthier and more inclusive, these regulations do just that and result in an easy-to-implement checklist on how to handle workplace issues related to gender identity. And, while the regulations specifically clarify California law, they constitute a summary of best practices for any employer.
In addition to the regulations specifically related to gender identity and expression, organizations can look to two additional resources. First, California’s Department of Fair Employment and Housing issued “Transgender Rights in the Workplace” which provides helpful information.
California employers are also required to include information related to harassment based on gender identity, gender expression and sexual orientation in the required sexual harassment prevention training (Govt Code section 12950.1(c)). Organizations who are serious about not just complying with minimum legal standards, but who are also committed to providing a workplace culture that genuinely values diversity, inclusion and belonging, should incorporate these principles into everything related to the workplace – including policies, training, talent management and every other aspect of HR and employee relations.
Putting all this information together results in a list of best practices for progressive organizations:
- Start with you—educate yourself on these issues.
- Help others improve their skill of respect.
- Leave out morality and focus on inclusion.
- Focus primarily on employee choice.
- Define “employee choice” to your line managers.
- Review, and, if necessary, revise your dress and grooming standards.
- Check employment applications to eliminate the “gender box” from the area that applicants are required to complete.
- Be proactive—create a checklist of all these items so that when the issue arises, you’re ready to handle it.
- Incorporate all of these topics into your harassment prevention training.
Gender Identity Regulations Public Policy Emphasis
California’s Fair Employment and Housing Act has long included gender identity and gender expression as protected categories. As is true with all regulations, these do not create new law, but rather clarify existing law, and provide all constituents (employees, employers, advocates, etc.) with a “one-stop-shop” on issues related to gender identity and expression.
An underlying theme to these and other regulatory projects promulgated by the Council is to provide employers with the message that they should approach these issues in ways that are systematic, thoughtful and intentional. The purpose behind the regulations is also for employers to focus on issues related to safety and inclusion, rather than a singular focus on legal compliance.
The regulations address several key issues, including:
- Updated gender identity definitions.
- Guidance on issues related to the use of facilities (restrooms, showers, locker rooms, etc.).
- Use of information related to gender and inquiries regarding gender.
- Pronoun/name preference.
- Dress and grooming standards.
- Communication between employees and company representatives.
Gender Identity Definitions
The regulations contain the following definitions:
- Gender identity is defined as each person’s internal understanding of their gender, or the perception of a person’s gender identity. The definition was expanded to include employees who do not identify as either male or female (commonly referred to as the non-binary choice) and to include employees who identify as a combination of male and female.
- Gender expression is defined as a person’s gender-related appearance or behavior, or perception of the same, whether or not stereotypically associated with the person’s sex assigned at birth.
- Transgender generally refers to a person whose gender identity differs from the person’s sex assigned at birth.
- Transitioning is defined as “a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth. This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g., sports teams, team-building projects, or volunteering), or undergoing hormone therapy, surgeries, or other medical procedures.” Although transitioning is not a new or independent protected category, the regulations make it clear that an employee who is transitioning (or has transitioned) is protected by California law under the gender identity protection.
Facility Access and Use
The regulations require employers to allow employees to use the restroom, locker room, dressing room, or dormitory (referred to collectively as “facilities”) that corresponds to the employee’s gender identity or gender expression, regardless of the employee’s sex assigned at birth. The main point in the regulations is that an employer must abide by how the employee identifies.
There are a few details related to this issue that warrant emphasis:
- Note that the regulations purposely leave out the word “accommodation.” Because this term has become a legal term of art, particularly in the disability, pregnancy and religion realm, and because the word implies an obligation for employer and employee to engage in an “interactive process” (yet another term of legal art), that word was deliberately left out so that there would be no confusion. Unlike a request for a “reasonable accommodation,” a request to use a particular restroom (or other facilities), based on the employee’s gender identity or expression, is not subject to analysis for reasonableness.
- The regulations also expressly prohibit an employer from asking for or requiring “proof” of gender before granting an employee’s request to use a particular facility.
- Employers can provide “feasible alternatives” such as locking toilet stalls, staggered shower schedules, shower curtains, or other methods to achieve privacy. Employers may not, however, require an employee to use a particular facility (or fail to provide access to the facility they wish to use), based on the employee’s gender identity or expression.
- Finally, the regulations state that employers who have single-user facilities shall use gender-neutral signage (examples include “restroom,” “unisex,” “all gender restroom,” but an employer can choose other language as long as it makes clear that any gender may use that restroom).
Inquiries Regarding Gender
A section of the regulations that might be overlooked is one that might have the most significant impact on employers: the prohibition from using a “gender box” on employment applications.
The rationale behind this language is that the FEHA clearly states that no inquiries can be made regarding any protected category (for example, employment applications cannot seek information about an applicant’s age or religion). The regulations make clear that employers may still ask for this information voluntarily, for example for purposes of EEO data collection (similar to the way information is collected regarding race and veteran status, for example).
Name and Pronoun Preference
The regulations address issues related to requests from an employee to change their name or the pronoun to be used to address that employee. One of the main points of this section is much like the language related to facility usage – employee choice is usually controlling, the only exception is when a law mandates the use of the employee’s legal name.
An easy rule of thumb for employers is to make any requested changes that are under its control, but explain to the employee the changes that the company is not allowed to make. For example, if the employee would like a new email address or new business cards with their preferred name, or if the employee requests to be called by a different pronoun (or by a gender-neutral pronoun), an employer should always honor these requests, as they are all within the employer’s control.
Of course, this requires open and respectful communication with the employee to ensure their wishes are executed appropriately (for example, the employee may request that HR or the department manager send out an email with this information, or they might prefer to communicate the request to a limited group of people).
On the other hand, if the name change involves a legally-mandated duty, such as IRS documentation or reports to other governmental agencies, then an employer can (and indeed in most cases must) continue to use the employee’s legal name (and, if applicable, gender), as it appears on his/her official identification documents.
In other words, although an employer can easily issue a new name placard for the employee’s desk, an employer cannot issue paychecks in a name that is different from the employee’s official identification.
An important note on this topic involves legal liability–the regulations make clear that an employer may be liable for failing to use the name or pronoun requested by the employee. The regulations clarify that the employer will not be automatically liable in the event, for example, that someone at the company simply forgets and reverts to using the employee’s previous name or using the pronoun they might have previously used.
Although there might be a short period during which colleagues get used to the new name and/or pronoun, at some point, it might be seen as a willful violation. Examples of this include if the employer does not adequately communicate the request, or if employees or managers continue to refer to the employee by the wrong name or pronoun and are not corrected or reminded.
The responsibility, therefore, falls on the appropriate company representative to have a plan in place to address these requests and make sure that employees and managers know the importance of the request.
Dress and Grooming Standards
The regulations make clear that it is unlawful to impose any physical appearance, grooming or dress standard which is inconsistent with an individual’s gender identity or gender expression (unless the employer can establish a business defense).
Finally, the regulations emphasize the need for open and respectful dialogue between employee and employer.
Generally speaking, an employer should not make inappropriate inquiries about gender identity or require any proof to grant a request (for facility usage or name preference). However, the regulations cite two exceptions to this general rule.
First, an employer is allowed to make a “reasonable and confidential inquiry of an employee for the sole purpose of ensuring access to comparable, safe, and adequate multi-user facilities.”
Second, the regulations expressly allow, and even encourage, communication between the employee and an employer representative “when the employee initiates communication with employer regarding the employee’s working conditions.”
In short, if a company representative (often someone in HR) receives a request regarding any of these topics (preferred name or gender, use of a different facility), the company should respond to this inquiry quickly, confidentially, respectfully and consistently.
9 Key Gender Identity Regulations Takeaways
- As the definitions section indicates, there is terminology that you or your employees might find unfamiliar. Make it a goal to become better-versed and more comfortable with these terms; doing so will increase the probability that you will be able to communicate with employees professionally and respectfully. This effort is a key component in designing and executing a genuine and authentic inclusion strategy.
- In addition to making it your own goal to address these issues professionally, ensure that managers and employees also understand their responsibility to be respectful.
- These issues should not be addressed from a political or moral perspective, but rather with an emphasis on the type of behavior expected from and towards all employees.
- With few exceptions, employee choice will be determinative.
- For issues related to facility usage and change in name/pronoun: Train managers on the nuances associated with employee choice. They are not allowed to ask for “proof” of gender, and there is no negotiation – an employee is allowed to use the facility of choice based on that employee’s gender identity/expression.
- Apply dress or grooming standards based on the employee’s gender identity or gender expression.
- Review employment applications and ensure there is no “gender box” on the section of the application that an applicant must complete.
- Create a checklist for issues to discuss if an employee approaches you with a request to be called a different name or referred to by a different pronoun. Ask the employee how and to whom the request should be communicated, discuss where a name can be changed (do you need to order new business cards? do you need to contact IT to change an email address?), and when a name cannot be changed (tax documentation, paychecks, benefits information).
- Review your harassment training content to make sure that these issues are discussed in detail.